KABLE DISTRIBUTION SERVICES, INC. DISTRIBUTION AGREEMENT
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Exhibit
10.9
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KABLE
DISTRIBUTION SERVICES, INC.
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AGREEMENT
made and entered into at New York, New York this 15th day of February 2007
by
and between SALON CITY. INC., a Nevada corporation, whose place of business
is
at 000 X. Xxxx Xxxxxx. Xxx 000. Xxxx Xxxxxxxxx. XX 00000 (hereafter
PUBLISHER) and KABLE DISTRIBUTION SERVICES, INC. a Delaware
corporation, with its executive offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
(hereafter DISTRIBUTOR).
1. DEFINITIONS
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(a)
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"Completion
of Shipping" with respect to each issue of a Publication shall mean
the
date the PUBLISHER's printer completed shipping all
copies of such issue to Distributor's Sales Outlets in accordance
with
DISTRIBUTOR's shipping instructions as stated on the
Printer's Completion Notice.
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(b)
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"Cover
Price" with respect to each issue of a Publication shall mean the
suggested retail selling price of such issue specified on the cover
of
each copy thereof.
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(c)
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"Distributor's
Estimated Final Net Xxxxxxxx" with respect to each issue of a Publication
shall mean DISTRIBUTOR's estimate of what the Net
Xxxxxxxx of such issue will be at such time as when all Returns have
been
received from Distributor's Sales
Outlets.
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(d)
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"Distributor's
Sales Outlets" shall mean customers of
DISTRIBUTOR.
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(e)
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"Frequency"
shall mean the number of times per year a Publication is published
and
distributed.
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(f)
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"Net
Xxxxxxxx" with respect to each issue of a Publication shall mean
Publisher's Gross Xxxxxxxx with respect to such issue, less Return
Credits
with respect to such issue.
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(g)
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"Off-Sale
Date" with respect to each issue of a Publication shall mean the
On-Sale
Date of such Publication's next issue or such other date as designated
by
PUBLISHER and agreed to by DISTRIBUTOR,
that all copies of such issue are scheduled to be removed from retail
outlets for sale to the general
public.
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(h)
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"On-Sale
Date" with respect to each issue of a Publication shall mean the
date that
such issue is actually placed in retail outlets for sale to the general
public across the country.
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(i)
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"Overpayment"
with respect to a specific issue, or with regard to
PUBLISHER's account, shall mean where the aggregate
amount of all advance payments mode by DISTRIBUTOR to
PUBLISHER or for its account, together with all returns,
charges, allowances, discounts and other credits or reimbursements
incurred or accrued to which DISTRIBUTOR shall be
entitled for such issue, or all issues distributed by
DISTRIBUTOR, exceeds the amounts due
PUBLISHER for a specific issue, or in the aggregate, for
all issues then distributed.
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(j)
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"Printer's
Completion Notice" with respect to each issue of a Publication shall
mean
a notice delivered to DISTRIBUTOR and executed by an
appropriate representative of the printer of such issue, which shall
certify the specific number of copies of such issue shipped in accordance
with DISTRIBUTOR'S instructions, and the date of
completion of such shipping,
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(k)
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"Print
Order" shall mean the agreed upon number of copies of a specific
issue of
the Publication(s) to be printed by PUBLISHER and which
DISTRIBUTOR has agreed to
distribute.
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(l)
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"Publisher's
Billing Price" with respect to each issue of a Publication shall
mean the
amount charged DISTRIBUTOR by PUBLISHER
for each copy of such issue distributed
hereunder.
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(m)
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"Publisher's
Gross Xxxxxxxx" with respect to each issue of a Publication shall
mean the
product of Publisher's Billing Price with respect to such issue multiplied
by the number of copies distributed hereunder in accordance with
the
Printer's Completion Notice with respect to such
issue,
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(n)
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"Publication(s)"
shall mean the title(s) listed on Schedule "A" including any "one-shots,"
annuals or titles derived therefrom, as amended from time to time
to
include any additional titles subsequently covered by the terms hereof
as
provided herein or as provided by agreement of the
parties,
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(p)
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"Returns"
with respect to each issue of a Publication shall mean any and all
copies
of such issue returned for credit by Distributor's Sales Outlets
pursuant
to Paragraph 9 hereof and for which DISTRIBUTOR has
issued such a credit.
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(q)
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"Return
Credit" with respect to each issue of a Publication shall mean the
product
of Publisher's Billing Price multiplied by the number of Returns
of such
issue.
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(r)
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"Settlement"
shall mean the time when the Settlement Payment is due under Paragraph
15(d).
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(s)
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"Territory"
shall mean Puerto Rico, U.S. Military over seas and all accounts
outside the United States of America and
Canada.
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2.
GRANT OF RIGHTS
PUBLISHER
hereby gives and grants unto the DISTRIBUTOR, effective as of
the date of this Agreement, and during the term hereof (and any renewal term
thereof) the sole and exclusive right to purchase from
PUBLISHER and to resell and distribute throughout the
Territory, the Publication(s) of PUBLISHER, except that
PUBLISHER reserves the right to sell copies thereof
to
individual subscribers at subscription prices. All purchases shall be subject
to
DISTRIBUTOR'S right to receive Return Credits for Returns as
set forth in Paragraph 9 hereof.
3. TERM
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(a)
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The
term of this Agreement shall be for a period of three (3) years from
the
On-Sale Date of the first issue distributed hereunder and shall include
all issues of all Publications whose scheduled On-Sale Date(s) ore
prior
to the expiration of such period. This Agreement shall automatically
continue for successive terms of equal length thereafter unless either
party hereto shall give written notice of its intention to terminate
("Notice of Termination") no less than ninety (90) days prior to
the lost
day of any such term; such Notice of Termination to be sent by as
specified in Paragraph 25 of this
Agreement.
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(b)
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It
is agreed that the On-Sale Date of the first issue to be distributed
hereunder will be no later than two hundred and ten (210) days after
the
date of this Agreement and that the failure of PUBLISHER
to comply with this provision shall give DISTRIBUTOR the
unequivocal right to terminate this Agreement upon ten (10) days
written
notice thereof.
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(c)
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Any
and all of the respective rights and duties of the
PUBLISHER and DISTRIBUTOR under this
Agreement shall survive its termination with regard to copies of
the
Publication(s) distributed hereunder, the distribution of which had
commenced before such termination.
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(d)
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Termination
of this Agreement for any reason shall not affect any right of either
party to receive any money owed by the other party hereunder, the
amount
of which shall be calculated in the manner which would hove otherwise
been
required hereby, absent such termination. PUBLISHER shall
not have the right to terminate this Agreement at any time that the
PUBLISHER is indebted to the
DISTRIBUTOR, for any reason whatsoever, without first
reimbursing the DISTRIBUTOR to the full amount of such
indebtedness.
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4. REPRESENTATIONS
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(a)
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PUBLISHER'S
REPRESENTATIONS.PUBLISHER represents
and warrants that (i) it is the sole and exclusive owner of all rights,
including but not limited to, copyrights, titles, trademarks, trade
names,
trade dress, logos, formats, in and to the Publication(s) (collectively
the "PUBLISHER'S Rights") and that such
PUBLISHER'S Rights are not subject to any liens or
encumbrances of any nature (and should said Rights be encumbered
or be
pursuant to a license, some has been disclosed to
DISTRIBUTOR in writing); (ii) the rights herein granted
to DISTRIBUTOR have not been granted to any other person,
firm, or corporation; (iii) it has the right and authority to enter
into
this Agreement and to perform the obligations hereunder to be performed
by
PUBLISHER; (iv) there are no existing contracts,
agreements or other arrangements which in any way whatsoever prevent
or
interfere with the PUBLISHER'S making and entering into
this Agreement or performing hereunder; (v) that to the best of
PUBLISHER'S knowledge, there are no suits or proceedings
pending or threatened against or affecting PUBLISHER
which, if adversely determined, would impair the Rights herein granted
to
DISTRIBUTOR or prevent PUBLISHER from
performing hereunder; (vi) it will use its best good faith efforts
to
ensure that nothing contained in any Publication will be grounds
for an
action either to prevent distribution thereof or result in any claim
for
damages or governmental action by reason of the fact that the material
contained therein is in violation of any federal, stole or local
low or
ordinance or in violation of any third party's rights, and (vii)
that all
actual issues of previously unpublished or re-launched Publication(s)
shall substantially conform to the specimen copy(ies) or facsimile(s),
or
to any specifications or other descriptions, exhibited by
PUBLISHER to DISTRIBUTOR prior to
publication and distribution, and approved by
DISTRIBUTOR.
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(b)
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DISTRIBUTOR'S
REPRESENTATIONS.DISTRIBUTOR represents and
warrants that (i) it has the right and authority to enter into this
Agreement and to perform the obligations hereunder to be performed
by
DISTRIBUTOR; (ii) there ore no existing contracts,
agreements or other arrangements which in any way whatsoever prevent
or
interfere with the DISTRIBUTOR'S making and entering into
this Agreement or performing hereunder; and (iii) that to the best
of
DISTRIBUTOR'S knowledge, there are no suits or
proceedings pending or threatened against or affecting
DISTRIBUTOR which, if adversely determined, would impair
the rights herein granted to DISTRIBUTOR or prevent
DISTRIBUTOR from performing
hereunder.
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5. FIRST
OPTION
DISTRIBUTOR
shall hove the first option to purchase from PUBLISHER, and to
resell and distribute any and all additional periodical(s) or publication(s)
intended to be published by PUBLISHER during the term of this
Agreement (or any other renewal term thereof) on the same terms and conditions
as set forth in this Agreement. PUBLISHER shall promptly notify
the DISTRIBUTOR in writing of its intention to publish and
distribute any such additional publications), and DISTRIBUTOR
shall, within fifteen (I5) days after receipt of said written notification,
advise PUBLISHER of its willingness or refusal to distribute
any such additional publication(s).
6. NUMBER
OF COPIES, COVER PRICE AND FREQUENCY
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(a)
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The
Cover Price, the Print Order and the Frequency of each issue of the
Publication(s) shall be as PUBLISHER and
DISTRIBUTOR shall mutually agree upon, approval not to be
unreasonably withheld by DISTRIBUTOR.
PUBLISHER agrees to deliver, or promptly cause to be
delivered, and DISTRIBUTOR agrees to distribute, the
agreed upon number of copies of each issue of the Publications) with
the
assigned bipod number, Universal Product Code Symbol and Cover Price
imprinted on the front cover of each copy thereof to
DISTRIBUTOR'S Sales Outlets designated by
DISTRIBUTOR in accordance with
DISTRIBUTOR'S shipping instructions.
PUBLISHER further agrees that only copies distributed by
DISTRIBUTOR shall have the Universal Product Code Symbol
and the bipod number assigned by DISTRIBUTOR imprinted on
the front cover.
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(b)
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In
the event that PUBLISHER and DISTRIBUTOR
do not mutually agree upon Cover Price, Print Order and/or the Frequency
of each issue, PUBLISHER shall hove the option to require
DISTRIBUTOR to take, and use its best efforts to sell,
such copies, subject to the following: (i) in the case there is no
mutual
agreement on the Print Order to be distributed to
DISTRIBUTOR'S Sales Outlets, DISTRIBUTOR
shall calculate any advances that may be due pursuant to Section
15 using
an amount equal to the average number of copies distributed by
DISTRIBUTOR for such Publication(s) for the twelve (12)
month period prior to the issue for which disagreement exists when
calculating PUBLISHER's Gross Xxxxxxxx and Distributor's
Estimated Final Net Xxxxxxxx; (ii) in the case there is no mutual
agreement on the Cover Price, DISTRIBUTOR shall pay
advances in an amount equal to the Cover Price for the immediately
preceding issue of the Publication in question; (iii) in the case
there is
no mutual agreement on the Frequency, DISTRIBUTOR shall
pay advances only on the frequency agreed upon in Schedule "A" hereto.
The
calculations contained in 6(b)(i), (ii) and (iii) shall be in effect
until
three (3) issues with the new Print Order, Cover Price or Frequency
have
reached Settlement under Paragraph 15(d), after which the provisions
of
Paragraph 15(b) and (c) will apply.
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7. TRANSPORTATION
AND RELATED COSTS
PUBLISHER
shall pay all transportation costs, including without limitation, insurance
costs, Canadian Goods and Service Tax (hereafter GST),
import-export charges or tariffs and other duties, relating to the shipment
of
each issue of the Publication(s) to Distributor's Sales Outlets.
8. PUBLISHER'S
BILLING PRICE, FOREIGN CURRENCY
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(a)
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The
Publisher's Billing Price to DISTRIBUTOR shall be in
accordance with the price(s) set forth in Schedule "A"; provided,
however,
that upon any change in the Cover Price of a Publication, the Publisher's
Billing Price shall automatically be revised pro rata with
respect to the issues with the changed Cover Price so that the ratio
of
Publisher's Billing Price to Cover Price shall remain consistent
with that
determined by reference to the prices then in effect in Schedule
"A",
which shall, following each change in Cover Price, be deemed amended
with
or without a written amendment as otherwise required by Paragraph
29(a).
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(b)
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All
monies which may be due PUBLISHER pursuant to the terms
of this Agreement shall be paid in United States dollars.
PUBLISHER will reimburse DISTRIBUTOR for
any losses realized by DISTRIBUTOR due to a difference in
foreign exchange rates, including those of Canada, on monies received
from
Distributor's Sales Outlets in payment for Publication(s) distributed
hereunder, and DISTRIBUTOR agrees to pay
PUBLISHER any gains realized due to said difference.
DISTRIBUTOR has the right to make any adjustments for
foreign exchange rates prior to making any payment(s) to
PUBLISHER.
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9. RETURNS
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(a)
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DISTRIBUTOR
has the option and is authorized to accept as Returns from Distributor's
Sales Outlets the following: whole copies, front covers, headings
of front
covers, and affidavits or statements of returns including those
electronically transmitted, of the Publication(s).
DISTRIBUTOR has the exclusive right to determine the
method of return from Distributor's Sales Outlets.
DISTRIBUTOR is specifically authorized by
PUBLISHER to destroy or arrange for the destruction of
said Returns at any time after receiving same in any manner deemed
suitable by DISTRIBUTOR, unless at least thirty (30) days
prior to the On-Sale Date of any particular issue of the Publication(s),
PUBLISHER shall have given DISTRIBUTOR
notice in writing of PUBLISHER'S request that the Returns
of said issue be held for thirty (30) days after date of Settlement
with
respect thereof, if available, so that PUBLISHER can
audit said Returns at its own cost and expense. Said audit and count
must
be mode by PUBLISHER during such thirty (30) day period
at the particular place of storage thereof maintained by
DISTRIBUTOR at such time. PUBLISHER
agrees not to request more than one (1) audit per year per Publication
unless, as a result of two (2) or more prior audits, substantial
discrepancies were discovered by
PUBLISHER. PUBLISHER shall
reimburse DISTRIBUTOR for its expenses in connection with
any such audits.
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(b)
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In
the event that DISTRIBUTOR has not received all Returns
of any issue(s) distributed hereunder from any of the Distributor's
Sales
Outlets for any reason, including without limitation, that such outlets
or
that any one of them (i) are subject to the appointment of a receiver,
or
(ii) ore adjudicated a bankrupt after filing of a petition of voluntary
or
involuntary bankruptcy, or (iii) ore reorganized or managed by a
trustee
or committee of creditors under the Federal Bankruptcy Act, or (iv)
are
dissolved, terminated or no longer in business, or (v) are destroyed
by
fire, flood or other disaster, or (vi) are unable to return all unsold
copies of any such issue due to strikes, lockouts, other labor disputes,
casualty, bankruptcy or for any other reason, then
DISTRIBUTOR shall be entitled to charge
PUBLISHER for Returns from such Distributor's Sales
Outlets, in on amount equal to the product of the average return
percentage of the applicable Distributor's Sales Outlet(s) for such
Publication(s) for the twelve (12) month period (or such lesser period
if
applicable) prior to the issue(s) for which DISTRIBUTOR
has not received all Returns, multiplied by the number of copies
received
by said Distributor's Sales Outlet(s) for such
issues(s).
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(c)
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In
the event PUBLISHER desires to receive whole copy
Returns, written notice of the quantities thereof desired, and the
address
to which such whole copy Returns shall be sent, shall be supplied
to
DISTRIBUTOR not less than thirty (30) days prior to the
On-Sale Date of such issue. PUBLISHER shall pay
DISTRIBUTOR its then standard packing and handling fees
for whole copy returns received and/or shipped by
DISTRIBUTOR. PUBLISHER shall also
reimburse DISTRIBUTOR for all direct costs incurred by
DISTRIBUTOR, including all shipping costs, all container
costs and all costs charged by Distributor's Sales Outlets, for arranging,
receiving and delivering such whole copy Returns. Upon receipt of
such
written notice requesting whole copy Returns, the sole obligation
of
DISTRIBUTOR in this regard shall be to make written
request for the same from Distributor's Sales Outlets, it being understood
and agreed that nothing herein contained shall require
DISTRIBUTOR to take any other action with respect to such
request. PUBLISHER represents and warrants that it will
only use said whole copy Returns to fulfill subscription orders or
for
other purposes, provided that PUBLISHER has employed
safeguards, reasonably satisfactory to DISTRIBUTOR, that
ensure that such whole copy returns do not re-enter
DISTRIBUTOR'S
system.
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10. RDA
– Deleted
11. DISCOUNTS
AND ALLOWANCES
PUBLISHER
shall pay DISTRIBUTOR for any and all discounts and allowances,
which are in excess of DISTRIBUTOR'S national billing discount
for each Publication, made by DISTRIBUTOR to any of
Distributor's Sales Outlets in locations where special labor conditions and/or
other situations and conditions exist causing such discounts or allowances,
together with any other discounts, allowances and programs issued by
PUBLISHER.
12. RISK
OF LOSS; SHORTAGES, ETC.
Any
loss,
shortage, destruction of, or damage to copies of any issue(s) of each
Publication, including, but not limited to, any loss, shortage, or damage to
such copies as reported by DISTRIBUTOR'S Sales Outlets and for
which credits are claimed, or to any Returns as defined in Paragraph 9 hereof,
shall at all times be at the risk of and be borne solely by
PUBLISHER, and DISTRIBUTOR shall be entitled
to charge PUBLISHER's account with DISTRIBUTOR
for such copies, and some may be deducted by DISTRIBUTOR from
any sums otherwise due PUBLISHER. The parties specifically
agree that credits granted to DISTRIBUTOR's Sales Outlets by
DISTRIBUTOR for shortages, lost or damaged copies
shall be
conclusive and binding upon the PUBLISHER, and upon
PUBLISHER's written request DISTRIBUTOR shall
furnish to PUBLISHER such information
DISTRIBUTOR may hove with respect to any loss, shortage,
destruction or damage. The right and responsibility of filing any shortage
claims with the shipper of record and/or carrier is the obligation of the
PUBLISHER; provided, however, that DISTRIBUTOR
shall assist PUBLISHER in the filing of such claims. In the
event that DISTRIBUTOR shall recover any part of such loss,
then the DISTRIBUTOR shall include same in Net Xxxxxxxx and
shall charge PUBLISHER the DISTRIBUTOR'S
actual costs, including counsel fees and other expenses, incurred in recovering
such loss; however, DISTRIBUTOR shall not be under any
obligation to institute any action or proceeding for recovery of any such loss.
In the event PUBLISHER recovers any part of such loss directly
from the shipper or other third party, PUBLISHER will pay
DISTRIBUTOR a sum equal to the amount
DISTRIBUTOR would have earned if
such recovery were included in
Net Xxxxxxxx for such Publication, or in the alternative,
DISTRIBUTOR may deduct such sums from any payments thereafter
due PUBLISHER or charge PUBLISHER's
account.
13. PROMOTION
AND SOLICITATION COSTS
PUBLISHER
shall at its own expense provide DISTRIBUTOR with reasonable
quantities of promotional materials for DISTRIBUTOR's use.
PUBLISHER shall pay DISTRIBUTOR far all direct
costs in connection with all promotion and solicitation mailings, including
those associated with PUBLISHER'S RDA program, made for
PUBLISHER'S Publications. If PUBLISHER
requests DISTRIBUTOR to incur advertising or promotional
expenses on behalf of PUBLISHER or for any of the
Publication(s), PUBLISHER shall pay
DISTRIBUTOR for all such expenses.
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14. MISCELLANEOUS
CHARGES
PUBLISHER
shall pay DISTRIBUTOR for the following charges:
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(b)
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Fee
of DELETED dollars for producing a galley for any issue
which is cancelled or for producing any additional shipping galleys
occasioned by PUBLISHER's errors, omissions or failure to
notify DISTRIBUTOR of changes on a timely
basis.
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(c) Any
reshipment charges incurred by DISTRIBUTOR.
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(d)
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Any
other charges or expenses incurred by DISTRIBUTOR
specifically on PUBLISHER's behalf or for its
Publication(s).
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15. PAYMENTS
TO PUBLISHER
DISTRIBUTOR
shall pay PUBLISHER the Net Xxxxxxxx of each issue of each
Publication distributed pursuant to this Agreement, less all credits to which
DISTRIBUTOR shall be entitled, as follows:
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GST
Advance Payment:
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(b)
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Initial
Advance Payment: On the DELETED
day after the on-sale date, DISTRIBUTOR shall
pay PUBLISHER on amount equal to DELETED
of Distributor's Estimated Final Net Xxxxxxxx commencing with
the first issue, less the GST Advance Payment for such issue
and less a reasonable reserve for discounts and allowances pursuant
to
paragraph 11, such reserve to be accounted for at the time of the
Second
Advance Payment under sub-paragraph 15(c). The Initial Advance Payment
shall continue on subsequent issues if in DISTRIBUTOR'S
judgment the sales warrant them. It is understood and agreed that
DISTRIBUTOR'S obligation to make the Initial Advance
Payment for any issue shall be conditioned upon timely shipment by
PUBLISHER of the particular issue to meet its scheduled
On Sale Date, and that PUBLISHER is in compliance with
all of the terms of this Agreement.
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(c)
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Second
Advance Payment: On the DELETED
day following the Off-Sale Date of such issue of each Publication,
DISTRIBUTOR shall pay PUBLISHER an
amount equal to DELETED of Distributor's Estimated Final
Net Xxxxxxxx with respect to such issue, less the aggregate amount
of the
following: the Initial Advance Payment made by
DISTRIBUTOR to PUBLISHER for such issue,
the GST Advance Payment, and all charges, allowances, discounts,
other
advances and other credits and reimbursements incurred or accrued
to which
DISTRIBUTOR shall be entitled. If, at the time of the
Second Advance Payment date of any issue, the previous advances mode
by
DISTRIBUTOR to PUBLISHER for that issue
exceed the amount due as a result of the Second Advance Payment
calculation, then DISTRIBUTOR may deduct such excess from
any monies due or thereafter due PUBLISHER pursuant to
this Agreement or any other Agreement between the parties, or
alternatively, DISTRIBUTOR shall have the option to
invoice PUBLISHER for such excess, and
PUBLISHER agrees to pay such invoice within ten (10) days
thereafter.
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(d)
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Settlement
Payment: On the DELETED day
following the Off-Sale Date of such issue of each Publication
DISTRIBUTOR shall pay PUBLISHER an
amount equal to the Net Xxxxxxxx with respect to such issue, less
the
aggregate amount of the following: all advance payments made by
DISTRIBUTOR to PUBLISHER or for its
account, and all charges, allowances, discounts and other credits
or
reimbursements incurred or accrued to which DISTRIBUTOR
shall be entitled for such issue or which hove been incurred or accrued
by
DISTRIBUTOR for other issues and which were not
previously deducted, and any reserve DISTRIBUTOR, in its
sole reasonable judgment, estimates is needed for Return Credits
for
Returns and RDA claims and yet to be received. The calculation of
the
Settlement Payment shall be set forth on a "PUBLISHER
Statement" prepared by the DISTRIBUTOR and sent at the
time of the Settlement Payment to PUBLISHER together with
the amount shown due, if any. In the event that the
PUBLISHER Statement indicates on Overpayment or other
amount due DISTRIBUTOR, then DISTRIBUTOR
may deduct such Overpayment from any monies due or thereafter due
PUBLISHER, and/or require PUBLISHER to
pay DISTRIBUTOR for such Overpayment within five (5)
business days after request for same. Any Returns received
and/or charges or credits incurred or accrued by
DISTRIBUTOR with respect to any issue of
PUBLISHER'S Publication(s) subsequent to the preparation
of the PUBLISHER Statement with respect to such issue of
the Publications) shall be included as a credit to
DISTRIBUTOR on any subsequent PUBLISHER
Statement and deducted from any monies thereafter payable to
PUBLISHER, or DISTRIBUTOR at its option
may require PUBLISHER to pay DISTRIBUTOR
for any such charges and credits within five (5) business days after
request for some. PUBLISHER agrees to accept any
PUBLISHER Statement from DISTRIBUTOR as
an account stated and the items therein enumerated as true and correct,
except as to any specific item or items appearing therein to which
the
PUBLISHER may object in writing within thirty (30) days
from the date of the mailing of said
Statement.
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(e)
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If,
at any time after an issue has been On-Sale for at least thirty (30)
days,
the DISTRIBUTOR, in its reasonable judgment, determines
that the total of advance payments, disbursements, allowances, discounts
and other credits incurred or accrued for which
DISTRIBUTOR shall be entitled to reimbursement, are in
excess of Distributor's Estimated Final Net Xxxxxxxx with respect
to such
issue, then DISTRIBUTOR may deduct any such excess from
any payments thereafter due PUBLISHER, or
DISTRIBUTOR at its option may require
PUBLISHER, and PUBLISHER agrees, to pay
DISTRIBUTOR for such excess within five (5) business days
following DISTRIBUTOR's request for
same.
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(f)
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Notwithstanding
anything in this Agreement to the contrary, DISTRIBUTOR
may at any time withhold any funds otherwise due
PUBLISHER and apply same to any monies due and owing to
DISTRIBUTOR from
PUBLISHER.
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(g) No
advances or other payments shall be payable by DISTRIBUTOR to
PUBLISHER:
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(i)
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For
any issue(s) for which DISTRIBUTOR has exercised its
right not to distribute pursuant to Paragraph 19 hereof,
or
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(ii)
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For
any issue(s) of any Publication if DISTRIBUTOR has reason
to believe PUBLISHER will not continue to publish further
issues of said Publication as provided for in this Agreement,
or
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(iii)
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For
the last two (2) issues of each Publication to be distributed by
DISTRIBUTOR for PUBLISHER hereunder
subsequent to the giving by either party to the other a Notice of
Termination pursuant to Paragraph 3 of this
Agreement.
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(h)
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Final
Settlement Payment. The Final Settlement Payment
for the last two (2) issues of each Publication to be distributed
by
DISTRIBUTOR under this Agreement, or for the two (2)
issues immediately preceding a Notice of Termination pursuant to
Paragraph
15(g)(iii), shall be made by DISTRIBUTOR to
PUBLISHERDELETED days after the Off-Sale
Date of the last issue of all Publication(s) being terminated.
DISTRIBUTOR shall be entitled to withhold a reasonable
reserve from the sum otherwise due PUBLISHER from the
Settlement Payment of such last two (2) issues. Said reserve shall
be in
an amount equal to (i) DISTRIBUTOR'S estimate of Return
Credits for Returns yet to be received, (ii)
DISTRIBUTOR'S estimate of RDA claims yet to be received
from retailers participating in PUBLISHER'S RDA program
as set forth in Paragraph 10 hereof, {iii) the amount which
DISTRIBUTOR estimates will be needed to reimburse
DISTRIBUTOR for charges, allowances and discounts to be
made or given on behalf of PUBLISHER and, (iv) for such
other credits for which DISTRIBUTOR will be entitled to
be reimbursed, which will or may be incurred subsequent to the preparation
of the PUBLISHER Statement for such last two (2) issues.
In the event that such reserve is insufficient, PUBLISHER
agrees to pay DISTRIBUTOR any such sums within ten (10)
days following DISTRIBUTOR'S request
thereof.
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(i)
|
The
parties agree that payment(s) for copies of Publications distributed
to
Distributor's Sales Outlets located outside the United States of
America
and Canada will be made DELETED later than the dates
indicated in Paragraphs 15(c), 15(d) and
15(h).
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(j)
|
Any
and all Overpayments shall be repaid by PUBLISHER to
DISTRIBUTOR upon termination of this Agreement or at such
time as DISTRIBUTOR shall have discontinued distributing,
for any reason whatsoever, any Publication, or any particular issue
of any
Publication.
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(k)
|
The
respective obligations of PUBLISHER and
DISTRIBUTOR under this Paragraph 15 shall survive the
termination of this Agreement.
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16. INDEMNIFICATION
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(a)
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PUBLISHER
shall indemnify, hold harmless and promptly reimburse the
DISTRIBUTOR, and Distributor's Sales Outlets and their
retail outlets and all of their respective officers, directors, employees,
agents and representatives (here collectively referred to as Distributor
Indemnities), from and against any losses, damages, fines, judgments,
expenditures, claims, reasonable counsel fees, legal and court expenses,
bond and bail charges and premiums, as well as any and all other
costs of
any kind or nature, resulting from defending or settling any claims,
civil
or criminal actions or proceedings and/or supplementary proceedings,
or in
connection with any inquiries, proceedings or actions by any federal,
state, local and/or any other governmental agencies or authorities
(collectively "Claims") which in anyway relate to, or arise from
or by
reason of: (i) the title, contents or any printed matter contained
within
any of the Publication(s), including, but not limited to, editorial
contents, photographs, pictures, cartoons, caricatures, drawings
or other
artwork, advertisements, and classifieds, whether contained on any
cover,
or any page or advertisement contained in or for said Publication(s),
or
any promotional material for PUBLISHER or the
Publication(s); (ii) the breach or alleged breach of any of
PUBLISHER'S representations and warranties contained in
Paragraph 4 of this Agreement, (iii) any services performed, or terms
or
programs offered by DISTRIBUTOR pursuant to the specific
request of PUBLISHER, or pursuant to incorrect
information supplied by PUBLISHER, or (iv) any other act
of PUBLISHER or omission relating to or affecting the
distribution or sale of the Publication(s) or relating to or affecting
the
services performed by any of the Distributor indemnities in connection
with the Publications.
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(b)
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DISTRIBUTOR
shall indemnify, hold harmless and promptly reimburse the
PUBLISHER and its officers, directors, employees, agents
and representatives (here collectively referred to as
PUBLISHER indemnities), from and against any losses,
damages, fines, judgments, expenditures, claims, reasonable counsel
fees,
legal and court expenses, bond and boil charges and premiums, as
well as
any and all other costs of any kind or nature, resulting from defending
or
settling any third party claims, civil or criminal actions or proceedings
and/or supplementary proceedings, or in connection with any inquiries,
proceedings or actions by any federal, state, local and/or any other
governmental agencies or authorities (collectively "Claims") relating
to
(i) the breach or alleged breach of any of DISTRIBUTOR'S
representations and warranties contained in Paragraph 4 of this Agreement,
or (ii) any wrongful act or omission of DISTRIBUTOR
arising from the services performed hereunder by
DISTRIBUTOR, except DISTRIBUTOR shall
have no liability under this subparagraph 16(b) for the following:
(1)
where any Claims arose from services performed by
DISTRIBUTOR pursuant to the specific request of
PUBLISHER; (2) where any Claims arose pursuant to
incorrect information supplied by PUBLISHER; (3) from
discounts and allowances pursuant to Paragraph 11 of this Agreement;
or
(4) unless such Claims arise from DISTRIBUTOR'S
intentional acts not in the ordinary and usual course of
DISTRIBUTOR'S business activities and/or are outside
usual or common industry practices and activities. If any such is
claim is
brought against two or more national distributors and/or
PUBLISHER's on common issues of fact or low, it shall be
presumed that such a claim is not one for which
DISTRIBUTOR shall be liable to indemnify, hold harmless
or otherwise reimburse
PUBLISHER.
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8
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(c)
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If
any such Claim is brought or made against the aforesaid Indemnities,
such
Indemnities shall have the right, at the indemnifying party's expense,
to
retain counsel of its own choosing for itself, and in the case of
Distributor's indemnities, DISTRIBUTOR shall have the
right to (i) retain counsel of its own choosing for itself and/or
Distributor's Sales Outlets and/or their retail outlets and/or (ii)
authorize the retention of counsel by Distributor's Sales Outlets
and/or
their retail outlets. If the indemnifying party shall also be named
a
party thereto, such party shall hove the right to its own counsel
at its
expense. The indemnified party shall give the indemnifying party
notice of
any such suits, proceedings, actions, claims or demands as soon as
practicable after receipt of same. Participation in the defense of
any
action by a party's counsel at such party's cost and expense shall
not
affect the indemnifying party's obligation to indemnify
hereunder.
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(d)
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Both
parties agree that neither shall have the right to compromise or
settle
any Claim in which the other is named unless said other party is
given ten
(10) days notice and the opportunity to join in such compromise or
settlement which shall result in a full and final release of all
Claims
against both parties.
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(e)
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During
the pendency of any such Claim, DISTRIBUTOR may withhold
payments as security, to the extent reasonably necessary, which otherwise
would be due to the PUBLISHER under this or any other
agreement between PUBLISHER and
DISTRIBUTOR. DISTRIBUTOR may
apply the payments so withheld to satisfy in whole or in part,
PUBLISHER'S obligations under this Paragraph
16.
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(f)
|
PUBLISHER
will name DISTRIBUTOR as an additional named insured
under any PUBLISHER'S liability insurance carried by
PUBLISHER and will deliver a certificate of such
insurance to
DISTRIBUTOR.
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(g) Each
party's respective obligations hereunder shall survive the termination of this
Agreement.
17. GALLEYS
AND SHIPPING INSTRUCTIONS
DISTRIBUTOR
shall supply the PUBLISHER, or at PUBLISHER's
request, its printer or forwarding agent with one set per issue of shipment
galleys, shipping instructions and labels designating the names and addresses
of
Distributor's Sales Outlets specifying the number of copies of each issue of
each Publication to be sent to each of them or computer topes containing such
information or electronically transmit such information, sufficiently in advance
of the Completion of Shipping with respect to such issue so that such issue
can
he shipped to arrive at Distributor's Sales Outlets receiving point(s) prior
to
the On-Sale Date of such issue.
18. ACCESS
TO RECORDS
DISTRIBUTOR
shall give PUBLISHER or its duly authorized representatives,
during business hours, reasonable access on an annual basis to
DISTRIBUTOR's draw, sale and Return figures relating to each
issue of the Publication(s) and other necessary records in support of all items
of charges and credits made by DISTRIBUTOR to
PUBLISHER pursuant to this Agreement, and shall
permit
PUBLISHER at its own cost and expense reasonable access, to
inspect and make copies of the same; said records to be maintained for a period
of twelve (12) months following the Off-Sale Date of each issue of each
Publication.
19. DISTRIBUTOR'S
RIGHT TO REFUSE DISTRIBUTION
Anything
to the contrary in this Agreement notwithstanding, in conjunction with a good
faith attempt to give prior notice to PUBLISHER, and time
permitting, and without incurring any liability thereof, the
DISTRIBUTOR may, refuse to distribute any issue(s) of any
Publication(s) covered by this Agreement, or at its option exercise the right
to
terminate this Agreement, if it comes to the attention of
DISTRIBUTOR, at any time through an officer of the court, that
such issue(s) may contain matter in violation of law or the rights of any third
party, or if such Publication shall be refused the use of the moils by the
United States Postal Service or such public corporation as may then exist for
the handling of mail, or if any such issue is refused entry into the United
States or Canada. In the event DISTRIBUTOR refuses distribution
hereunder with respect to an issue of a Publication no payments shall be due
PUBLISHER under Paragraph 15 with respect to such issue.
Distribution of any issue of any Publication(s) covered by this Agreement or
receipt of promotional copies does not and shall not establish nor constitute
knowledge or approval by the DISTRIBUTOR of the contents of
such issue. The PUBLISHER is aware that
DISTRIBUTOR does not regularly, and is not obligated
to,
examine or pass upon any issues of the Publication(s). Nothing contained in
this
Paragraph 19 shall affect any rights of DISTRIBUTOR under
Paragraph 16.
9
20.
FORCE MAJEURE
Neither
party shall be liable for any damage due to causes beyond its control, including
but not limited to, acts of civil or military authority, orders, rules or other
actions by appropriate regulatory authorities, labor difficulties, fire, flood,
power failure, or other natural or human catastrophes, acts of God, national
emergencies, quarantine, insurrection, riots and failure of transportation
and
equipment, nor shall any of the above be deemed a default by either
party.
21. RELATIONSHIP
OF PARTIES
It
is
understood and agreed that the relationship between PUBLISHER
and DISTRIBUTOR is that of creditor and debtor. All monies paid
by, or due and owing from Distributor's Sales Outlets for copies of said
Publication(s) not returned to DISTRIBUTOR, ore and shall at
all times belong to and remain the absolute property of the
DISTRIBUTOR. It is further agreed that
DISTRIBUTOR is not the agent of the PUBLISHER
except in connection with any services performed pursuant to Paragraph 10 of
this Agreement, nor is PUBLISHER the agent of
DISTRIBUTOR. Further, this Agreement does not constitute
and
shall not be construed as constituting a partnership of joint venture between
PUBLISHER and DISTRIBUTOR. Neither party shall
have any right to obligate or bind the other party in any manner whatsoever,
except as otherwise specifically set forth herein, and nothing herein contained
shall give, or is intended to give, any right of any kind whatsoever to any
third persons.
22. ASSIGNMENTS,
RIGHT TO TERMINATE, SALE OF ASSETS
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(a)
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Right
of Assignment of Agreement. Neither party shall
hove the right to assign or otherwise transfer its interest in this
Agreement without the prior written consent of the other party hereto,
such consent not to be unreasonably withheld. Any consent granted
by
either party to any such assignment or transfer shall not be deemed
a
waiver, in any subsequent case, of the prohibition contained herein.
However, nothing herein contained shall prevent either party hereto
from
assigning this Agreement to any third party (hereinafter "assignee")
in
connection with the sale or transfer
of:
|
(i) all
or substantially all of the assets of such assigning party
(ii) the
sale or transfer of a division of an assigning party
provided
the assignee assumes all liabilities and obligations of the assigning
party.
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(b)
|
Right
of Assignment of Payments from
DISTRIBUTOR. Nothing herein contained shall be
construed to prevent PUBLISHER from assigning any right
to receive any advance(s) or payment(s) which the
DISTRIBUTOR may make to the PUBLISHER
under this Agreement to any printer in connection with the production
of
any particular issue of any Publication covered by the Agreement
provided,
however, that such assignment shall be on a form provided by
DISTRIBUTOR and shall expressly state therein that at all
times the some is subject and subordinate in all respects to any
and all
of the rights of DISTRIBUTOR under this Agreement and
under any other agreement between PUBLISHER and
DISTRIBUTOR , and provided further that a copy of such
assignment shall be first submitted and approved by
DISTRIBUTOR at least forty (40) days prior to the On-Sale
Date of the particular issue. PUBLISHER agrees to pay
DISTRIBUTOR a thirty-five ($35.00) dollar administration
fee for each assignment processed by DISTRIBUTOR, payable
at the time the assignment is delivered to
DISTRIBUTOR.
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(c)
|
Obligations
of PUBLISHER on Sale or Transfer of Assets. In the
event PUBLISHER enters into an agreement to (i) sell,
transfer or dispose of all or substantially all of the assets of
PUBLISHER, or (ii) sell, transfer, assign, license or
otherwise relinquish or dispose of any of its rights to any or all
of the
Publication(s) or their title(s) or trademark(s) covered under, or
distributed pursuant to, this Agreement, to a third party (hereinafter
"Acquiring Party"), then PUBLISHER guarantees that any
such agreement between PUBLISHER and Acquiring Party
shall contain a provision requiring at DISTRIBUTOR'S
option, that either any such Acquiring Party be bound by and enter
into an
agreement assuming all the terms and conditions of this Agreement,
relating to the title or titles acquired, including any liabilities
to
DISTRIBUTOR hereunder, or in the alternative, that the
Acquiring Party enter into a New Distribution Agreement with
DISTRIBUTOR under the same terms and conditions of this
Agreement for a term equal to the then remaining term of this Agreement.
However, any such sale, transfer, assignment or license, or the entering
into of a New Distribution Agreement, shall not relieve
PUBLISHER of any existing or estimated obligation or
liability to DISTRIBUTOR, or any subsequent obligation or
liability if same concerns Publications distributed prior to such
sale,
transfer, assignment or license (hereafter "Continuing Obligations").
Any
existing obligation together with any DISTRIBUTOR'S
estimate of any sums to be owed, shall be paid by
PUBLISHER prior to such sale, transfer, assignment or
license of any Publications. Any continuing obligations of
PUBLISHER shall be paid by PUBLISHER to
DISTRIBUTOR upon demand. DISTRIBUTOR has
the right to require that any proceeds to be paid by an Acquiring
Party to
PUBLISHER should first be paid to
DISTRIBUTOR to satisfy any sums owed or estimated to be
owed to DISTRIBUTOR by PUBLISHER
hereunder. In the event that PUBLISHER fails to comply
with its obligations hereunder and/or the Acquiring Forty refuses
to be
bound by all the terms and conditions of this Agreement with respect
to
the acquired Publications, or that the Acquiring Party foils to enter
into
its own new Distribution Services Agreement with
DISTRIBUTOR under the same terms, conditions and
obligations of this Agreement, PUBLISHER shall pay
DISTRIBUTOR a Termination Fee equal to the revenue
DISTRIBUTOR estimates it would have received for the
remainder of the applicable Term of this
Agreement.
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10
23. ONE
- SHOTS AND/OR ANNUALS
Any
one-shots and/or annuals derived from any of the Publication(s) as may hereafter
be published shall be included in this Agreement on the same terms and
conditions as set forth herein. Notwithstanding the foregoing, in the event
the
DISTRIBUTOR wishes to change the amount and/or timing of
advance payments and the timing of Settlement, the parties hereby agree to
negotiate in good faith as to the amount and timing of such
payments.
24. WAREHOUSING
In
the
event that any Publication(s) or other materials of PUBLISHER
are stored at DISTRIBUTOR'S warehouse(s),
PUBLISHER agrees to pay DISTRIBUTOR its
standard handling and storage costs as they may be increased from time to time.
PUBLISHER acknowledges and agrees that
DISTRIBUTOR is not liable for any losses to copies
of
Publications or other materials stored at DISTRIBUTOR'S
warehouse(s) occasioned by fire, water damage, natural catastrophes, acts of
God
and/or theft, and that it is the obligation of the PUBLISHER to
obtain insurance to cover any such loss at its own expense.
DISTRIBUTOR reserves the right to limit the amount of space
allotted to PUBLISHER. PUBLISHER agrees to
remove any Publication(s) or other material from DISTRIBUTOR's
premises upon thirty (30) days notice. In the event PUBLISHER
does not remove its property within such thirty (3D) day period,
DISTRIBUTOR may remove and dispose of same as it sees fit at
PUBLISHER's expense.
25. NOTICES
Except
as
otherwise specifically provided herein, all notices permitted or required
hereunder shall be in writing and shall be given by receipted personal delivery,
registered or certified moil, or Federal Express (or similar overnight delivery
service), at the respective addresses set forth below, or at such other address
or addresses as may be designated by either party. Such notices shall be deemed
given when moiled or delivered to the post office or such overnight delivery
service, except that a notice of change of address shall be effective only
from
the date of its receipt. A copy of each notice shall be sent simultaneously
to
the following and/or to such other person(s) or address(es) as such parties
shall designate to the other by written notice.
TO
DISTRIBUTOR: TO
PUBLISHER:
Kable
Distribution Services,
Inc. Salon
City, Inc.
Attention:
President
Attention: President
000
Xxxx
Xxxxxx
000 X. Xxxx Xxx. Xxx 000
Xxx
Xxxx,
XX
00000 Xxxx
Xxxxxxxxx. XX 00000
with
a
copy to:
Kable
Distribution Services, Inc.
Attention:
Vice President of Finance
00
Xxxxx
Xxxxxx Xxxxxx
Xxxxx
Xxxxxx
Xxxxx
Xxxxxx, XX 00000
11
26. NON-DISCLOSURE
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(a)
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The
parties each acknowledge that the terms and conditions contained
in this
Agreement constitute confidential business information, and that
therefore, each agree that they, their representatives, agents and
employees will not disclose the terms and conditions of this Agreement
to
any person or organization except as otherwise provided in subparagraph
(b) of this Paragraph 26.
|
(b) Notwithstanding
the provisions of subparagraph (a) of this Paragraph 26 to the
contrary,
|
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(i)
|
Either
party may disclose the provisions of this Agreement to any potential
purchaser, assignee, or licensee of any Publication or other asset
of such
party or to underwriters, accountants, lawyers, bankers or other
lenders,
or such other party or parties as such party may reasonably require
in the
ordinary course of business; provided that such potential purchaser,
assignee, licensee, underwriter, accountant, lawyer, banker or other
lender, or other party agree in writing to hold the provisions of
this
Agreement confidential in the same manner as required by the terms
of this
Paragraph 26; and
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(ii)
|
Either
party may disclose the existence or provisions of this Agreement
if
required to do so by any court order or subpoena, or if in the reasonable
opinion of its counsel it is required to do so by any state or Federal
securities or other law or regulation;
and
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(iii)
|
Either
party may disclose the existence or any provisions of this Agreement
if
any such information has already been publicly
disclosed.
|
27. CONSTRUCTION
This
Agreement shall be governed by and construed in accordance with the lows of
the
State of New York applicable to agreements executed and fully performed therein.
The courts of New York (stole and federal) will have exclusive jurisdiction
over
any controversies regarding this Agreement: any action or proceeding which
involves such a controversy will be brought only in those courts, in New York
County. Any process in any such action or proceeding may, among other methods,
be served by delivery or certified mail, return receipt requested. Any such
delivery or mail service shall be deemed to have the some force and effect
as
personal service within the State of New York.
28.
HEADINGS
The
headings in this agreement are for convenience or reference only, and shall
not
limit or otherwise affect the meaning hereof.
29. GENERAL
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(a)
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No
waiver of any breach of this Agreement shall be held to be a waiver
of any
other or subsequent breach. No waiver, modification or cancellation
of any
term or condition of this Agreement or any amendment thereto shall
be
effective unless executed in writing by the party to be charged.
All
remedies afforded by this Agreement shall he taken and construed
as
cumulative, that is, in addition to every other remedy provided herein
or
by law.
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(b)
|
In
the event that the date on which any payment is to be made under
this
Agreement is a Saturday, Sunday, or legal holiday, the payment shall
be
made on the next business day
thereafter.
|
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(c)
|
This
Agreement shall be binding upon the parties hereto and their respective
legal representatives, heirs, successors and
assigns.
|
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(e)
|
No
oral or other representations, understandings or agreements have
been made
or relied upon in the making of this Agreement other than those
specifically set forth herein. This Agreement supersedes all existing
agreements by and between the parties hereto and constitutes final
expression of their agreement with respect to the subject matter
hereof
and is a complete and exclusive statement of the terms
thereof.
|
(f) The
Schedules attached to this Agreement are incorporated into and hereby made
a
part hereof.
12
IN
WITNESS WHEREOF, the parties hereto hove caused this Agreement to be executed
by
their duly authorized officers, as the day and year first written
above.
SALON
CITY,
INC. KABLE
DISTRIBUTION SERVICES, INC.
"PUBLISHER" "DISTRIBUTOR"
By:
/s/ Xxxxxx
Xxxxxxxx By:
/s/ Xxxxxx X. Xxxxx
Name
and
Title: Xxxxxx
Xxxxxxxx,
Pres/CEO Name
and Title: Xxxxxx X. Xxxxx,
Vice President Client Services
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SCHEDULE
"A"
|
|||
|
TITLE
|
FREQUENCY
|
COVER
PRICE
U.S.
|
PUBLISHER'S
BILLING PRICE
U.S.
|
|
SALON
CITY MAGAZINE
|
8x
per year
|
$3.99
|
DELETED
|
13
